South Africa: The Trouble With Oppelt And The Treatment Of Evidence In Medical Negligence Matters

Has the recent Constitutional Court decision of Oppelt v Head:
Health, Department of Health Provincial Administration: Western
Cape1 resulted in the effective substitution of expert
evidence by the logical reasoning of court? If so, the question is,
where does this leave us?

Introduction

The courts' task of dealing with medical negligence matters
has never been an easy one. It involves weighing the act or
omission of a medical practitioner against the standard of care of
a reasonably skilled practitioner in that particular branch of the
profession at the time.2 A practitioner will be
found to have acted negligently if a reasonably skilled
practitioner would have foreseen the likelihood of harm occurring,
taken steps to guard against it and the practitioner in question
failed to take those steps. To assist the courts in
determining what this standard of care entails, expert evidence is
generally led by the parties.

However, difficulty often arises when the court is faced with
two conflicting experts' opinions. In Michael and
Another v Linksfield Park Clinic and Another3, the
Supreme Court of Appeal held that "A defendant can be
properly held liable, despite the support of a professional opinion
sanctioning the issue, if that body of opinion is not capable of
withstanding logical analysis and is therefore not
reasonable."

In Medi-Clinic v Vermeulen4, the SCA held
that the court's duty is to evaluate whether and to what extent
the opposing expert evidence is founded on logical reasoning.
The SCA held that if two experts have opposing views which are both
based on logical reasoning, it cannot choose to simply prefer one
expert's evidence over that of the other. It held that
"If a medical practitioner acts in accordance with a
reasonable and respectable body of medical opinion, his conduct
cannot be condemned as negligent merely because another reasonable
and respectable body of medical opinion would have acted
differently."

The result of the abovementioned judgments was that where both
experts' opinions are based on logical reasoning, the
plaintiff's claim could not succeed.

The Oppelt decision

Towards the end of 2015, the Constitutional Court
("CC") reconsidered this approach to assessing expert
evidence in medical negligence matters in the majority judgment
handed down by Molemela, AJ in the Oppelt case. The facts
were briefly as follows: in 2002, a 17 year old male sustained
severe spinal injuries during a rugby match. He was initially
taken to Wesfleur Hospital, and was then transferred via ambulance
to Groote Schuur Hospital. After arriving at Groote Schuur,
Oppelt was transferred to Conradie Hospital's specialist spinal
cord injury unit where closed reduction surgery was performed.
Oppelt was rendered quadriplegic.

Oppelt instituted a delictual action in the High Court alleging
negligence on the part of the defendant's employees due to
delayed treatment. In support of his claim, Oppelt relied on
the expert evidence of Dr Newton, an orthopaedic surgeon who had
been in charge of the Conradie Hospital spinal cord injuries unit
some years previously and who testified that Oppelt would have had
a 64% chance of a full recovery had the closed reduction been
performed within four hours of his injury.

Dr Welsh, a Neurosurgeon, gave evidence for the defendant. He
testified that while the prognosis for the victim of an incomplete
spinal cord injury is better when treated earlier, Dr Newton's
theory (no pun intended) was unreliable as there is no consensus
within the medical fraternity regarding the relationship between
the lapse of time between the sustaining of an injury and its
decompression and whether this affects the neurological
outcome. Dr Welsh classified scientific data into three
categories of reliability, with class three data being the least
reliable because it leaves room for scientific bias, and into which
Dr Newton's evidence should be placed.5

Oppelt was successful in the High Court, which found that Dr
Newton's evidence was "well-reasoned and
logical" and that there was no acceptable evidence
adduced by the defendant to refute it.

The defendant appealed to the Supreme Court of Appeal
("SCA") which upheld the appeal. In its unanimous
decision, Swain JA evaluated Dr Newton's theory by firstly
looking at the reliability of the evidence upon which it is based;
and secondly, by examining Dr Newton's reasoning. The SCA
found that Oppelt had failed to prove, on a balance of
probabilities, that Dr Newton's view that decompressing a
spinal injury within four hours of the injury would probably lead
to complete recovery was sound. The SCA also found that it was not
foreseeable to the defendant's employees that failure to follow
Dr Newton's method would result in paralysis.

The Oppelt Constitutional Court decision

Oppelt further appealed to the Constitutional Court
("CC"), which considered whether legal causation had been
established by Oppelt.

The majority CC judgment questioned whether the defendant's
employees knew or ought reasonably to have known that spinal cord
injuries were to be treated with urgency at the Conradie Hospital
and not later than four hours as per Dr Newton's theory. The CC
emphasised the defendant's failure to lead evidence that its
employees were unaware of the urgency to arrange a decompression
within four hours. The CC also criticised the failure to
deviate from the provincial health department protocols for
referrals and treatment in an emergency situation and found this
failure to contravene Section 27(3) of the Constitution which
provides that "no-one may be refused emergency medical
treatment".

The CC considered the test in the Linksfield Park
Clinic decision which deals with the evaluation of conflicting
medical experts' opinions, finding that "the court is
not bound to absolve a defendant from liability for allegedly
negligent treatment or diagnosis just because evidence of expert
opinion, genuinely held, is that the treatment or diagnosis in
issue accorded with sound medical practice. The court must be
satisfied that such opinion has a logical basis, in other words
that the expert has considered comparative risks and benefits and
has reached a defensible conclusion."6

The CC then referenced the House of Lords decision of
Dingley v The Chief Constable, Strathclyde
Police7 which explained the difference between the
"scientific and the judicial measure of proof"
and which reminds the court to refrain from applying the standards
set by experts and to decide whether a case has been made out on a
balance of probabilities.

The majority decision of the CC was that the SCA erred in
rejecting Dr Newton's evidence. The SCA's emphasis was on
scientific data without taking cognisance of the weight of Dr
Newton's reasoning and experience as a whole. In
particular, the SCA erred in the following respects:

Dr Newton's evidence was partially peer-reviewed and
accepted, and was about to be published in a reputable
journal;

Dr Newton's explanation as to why he could not present
Class 1 data was plausible and a lack of general acceptance of his
theory should not cause its rejection.

The SCA did not evaluate the evidence as a whole and on a
balance of probabilities but focussed on scientific proof;

Dr Newton's study spanned the evaluation of spinal cord
injuries over a period of 12 years at Conradie Hospital and
therefore the sample should not have been criticised as being too
small.

The CC criticised the SCA's rejection of Dr Newton's
evidence which it considered to be based on logical
reasoning. The CC warned that "Logical theories put
forward by experts, not gainsaid by other experts, should not be
scoffed at without a basis."8

In its conclusion, the CC rejected the evidence of Dr Welsh in
favour of Dr Newton and found that "The respondent
constructively refused to provide the necessary emergency medical
treatment and breached its legal duty to provide the applicant with
medical treatment promptly or within the required four hours and
thus acted unlawfully."

How the Oppelt decision has changed the way disputed expert
evidence is considered

The CC effectively substituted its own logical reasoning, for
that of the expert's evidence before it. It made a
decision based on its "gut-feel" without
adequately taking into account the views of the medical community
on the scientific data on which the expert's evidence was
based. It favoured the theory of Dr Newton over the evidence of Dr
Welsh even though Dr Newton's theory was (in 2002) just that: a
theory. One of the reasons listed by the CC for accepting Dr
Newton's theory was that, in their view, "A lack
of general acceptance of Dr Newton's theory cannot, without
more, warrant a rejection of his theory9". Does
this mean that simply because a theory propounded by a medical
expert has not been rejected by his peers, it is reliable for
judicial purposes? We respectfully disagree.

Common sense dictates that a propounded theory may not be
rejected for a number of reasons. Primary among these is that
there may be no scientific data available to gainsay it at the
time.

With respect, the decision seems flawed. If one were to
assume for the moment that both experts' evidence was based on
logical reasoning and supported by a school of thought accepted
within the medical fraternity, in those circumstances the
plaintiff's claim should not have succeeded because the
plaintiff would not have proven his case on a balance of
probabilities.

Turning briefly to the minority judgment of Cameron, J (with
whom Jappie, J concurred), that found Oppelt was given appropriate
emergency medical treatment and that "in light of the
desperate situation of resource scarcity and pressure on the
medical personnel, we cannot say he was inappropriately
treated."

We are of the view that the minority judgment should be
preferred, because it correctly reaffirms the test for determining
medical negligence, namely whether in light of all the
circumstances a reasonable medical professional would have foreseen
the damage and taken steps to avoid it. Cameron, J found that
Newton's theory was "brand new" in 2002 and that no
academic publications directly supported his approach.10
The minority also found that, at that time, specialist opinions
contrary to Newton's theory were current and that Newton felt
the need to "evangelise" his theory at conferences and
the like.

Ultimately, Cameron J was of the view that Dr Newton's four
hour cut-off period was a theory among many other theories and
interestingly, was published only nine years after the incident.
The minority consequently found that the doctors and the Department
were not negligent.

Conclusion

Perhaps one the most disturbing effects of the Oppelt
decision is that it could change the way doctors treat their
patients. A doctor may well follow a newly-proposed modality of
treatment on a patient to escape the Oppelt criticism only
for later study and research to find that the theory was flawed.
Is this what we would have?

The Emirate of Dubai has followed its neighbour Abu Dhabi and introduced a compulsory health insurance for any person staying in Dubai - a new piece of legislation that you have probably already heard about.

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